On January 22, 2017, the Los Angeles Fair Chance Initiative for Hiring (Ban the Box) ordinance goes into effect and will place restrictions on when employers are permitted to seek information about an applicant's criminal history. The ordinance will also place restrictions on the conditions under which employers may refuse to employ an applicant based on the applicant's criminal history.
To assist in complying with the ordinance, a revised Application for Employment instructing applicants for employment in the City of Los Angeles not to answer the criminal history question portion of the application can be accessed here.
Below is information about some of the key aspects of the new ordinance and the obligations it imposes on employers.
Restrictions on Inquiring About Criminal History
Beginning January 22, 2017, the City of Los Angeles will generally prohibit employers from asking applicants about the applicant's criminal history prior to making a conditional offer of employment to the applicant. The City will also generally prohibit employers from inquiring about or requiring disclosure of an applicant's criminal history, such as through interviews or criminal history reports, prior to a conditional offer of employment being made to the applicant.
Fair Chance Process
Before taking adverse action against an applicant to whom a conditional offer of employment has been made based on the applicant's criminal history, employers will generally be required to provide applicants with a "Fair Chance Process" which includes the following steps:
- Perform a written assessment that effectively links the specific aspects of the applicant's criminal history with risks inherent in the duties of the employment position sought by the applicant.
- Provide the applicant with written notification of the proposed adverse action to the applicant, a copy of the written assessment, and any other information or documentation supporting the employer's proposed adverse action. The City has provided a template for such written notification which can be accessed here.
- Provide the applicant at least five business days to provide information or documentation to the employer regarding the accuracy of the criminal history or evidence of rehabilitation or other mitigating factors.
- The employer is required to consider the information or documentation provided by the applicant and perform a written reassessment of the proposed adverse action.
- If after performing the reassessment, the employer takes adverse action against the applicant, the employer shall notify the applicant of the decision and provide the applicant with a copy of the written reassessment.
The City will require employers to retain all records and documents related to an applicant's employment application and the written assessments and reassessments performed for a period of three years following the receipt of the applicant's employment application.
Notice and Posting Requirements
The City will require employers to state in all solicitations or advertisements seeking applicants for employment that the employer will consider for employment qualified applicants with criminal histories. Additionally, employers will be required to post a notice informing applicants about the ordinance and, if applicable, send a copy of the notice to each labor union or representative of workers with which they have a collective bargaining agreement or other agreement or understanding. The City has provided a notice which is available here.
The ordinance has certain limited exceptions and does not apply in the following circumstances:
- The employer is required by law to obtain information regarding a conviction of an applicant.
- The applicant would be required to possess or use a firearm in the course of employment.
- An individual who has been convicted of a crime is prohibited by law from holding the position sought by the applicant, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated or judicially dismissed following probation.
- An employer is prohibited by law from hiring an applicant who has been convicted of a crime.
The ordinance allows applicants and employees to bring a private cause of action for violations of the ordinance. Additionally, the City may impose fines of up to $2,000 per violation although fines will not apply prior to July 1, 2017. Prior to July 1, 2017, the City will only issue written warnings for violations.
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